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HQ 955617




March 29, 1995

CLA-2 CO:R:C:M 955617 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.40.90

District Director
U.S. Customs Service
Commercial Operations Division
610 S. Canal Street
Chicago, Illinois 60607

RE: IA 60/93; Geotronics Industrial Measuring System (IMS 1700); optical; laser; Chapter 90, Add. U.S. Note 3; HQs 950947, 954117; heading 8456, 8515, 9013; EN 90.13

Dear District Director:

This is in response to your memorandum of July 12, 1993 [MAN-1-02-CO:CH CT 309 JJ], to Customs in New York, forwarding a request by counsel for Geotronics of North America, Inc., for internal advice regarding the classification of the Geotronics Industrial Measuring System under the Harmonized Tariff Schedule of the United States (HTSUS). Your memorandum was referred to this office for a response. In preparing this ruling, we have considered several subsequent submissions by counsel.

FACTS:

The subject merchandise is the Geotronics Industrial Measuring System (IMS 1700), which is a mobile system that permits the automatic measurement of the thickness of the refractory brick lining of steel vessels, principally blast furnaces. The IMS 1700, which incorporates a helium-neon gas laser, measures the lining of a ladle at various points. Each measurement is represented by the distance from the device's measuring head to the point reflecting the laser beam, as well as, vertical and horizontal angles. This measurement is then converted into ladle-oriented coordinates (depth, radius and angle). Since the original dimensions of the ladle's safety lining are stored in the computer, the new measurements can be used to determine the correct thickness at each measured point.

When in use, the IMS 1700's telescope is focused on a desired point inside the ladle. The instrument's helium-neon gas - 2 -
laser transmits a beam from the measuring head to the point being measured. The laser beam is then reflected from this point back to the measuring head where the position of the point can be defined as a distance and an angle.

The IMS 1700's measuring head measures slope distance and direction to the remote object. A brochure submitted by counsel on the IMS 1100, which "does not differ in any meaningful respect" from the IMS 1700, states that the measuring head "contains the electrooptical components of the system: the laser light source, transmit/receive optics and electronics, telescope and the angle sensing discs."

The IMS 1700's transmitter optics consist of four prisms, which are used to bend light from the laser. This light goes through the telescope to the object being measured. The device's receiver optics consist of two prisms and a filter, which closes out any ambient light so that only the laser beam goes to the photomultiplier tube (PMT). The PMT then converts the light to an electronic signal.

The IMS 1700's angle sensing device consists of a glass disc with etched marks and two prisms, and is used to create a reference point for the telescope. It consists of two separate pulse discs, one on the side of the machine to test the vertical angle of the telescope, and one on the base of the machine to establish the horizontal angle of the instrument. The horizontal and vertical angles are measured by sensing the position of the two pulse discs. To sense the angle, coded pulse tracks on the disc are illuminated by a light-emitting diode, and the images of the pulse tracks are projected into an optical system on the opposite side of the disc. Counsel states that the newer generation of Geotronics' laser measuring machines use an electronic system in place of this angle sensing device.

ISSUE:

Whether the Geotronics Industrial Measuring System (IMS 1700) is classifiable as an optical measuring and checking instrument under subheading 9031.40.90, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the Customs Co-operation - 3 -

Council's official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The subheadings at issue are as follows:

9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
Other optical instruments and appliances:
Other:
9031.40.90 Other (8.7% ad valorem)

9031.80.00 Other instruments, appliances and machines (4.3% ad valorem)

Additional U.S. Note 3 to chapter 90, HTSUS, provides that the terms optical appliances and optical instruments "refer only to those appliances and instruments which incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose." Counsel argues that the IMS 1700 is not an "optical instrument" for tariff purposes because its telescope and other optics are for a subsidiary purpose. Counsel further argues that the IMS 1700 should not be regarded as an optical instrument based on the presence of its helium-neon laser.

In HQ 950947, dated February 25, 1992, Customs determined that a Gear Measuring Center (GMC), which was designed to measure large and heavy workpieces, was classifiable under subheading 9031.80.00, HTSUS, as it was not an optical measuring or checking instrument. We held that the GMC's optical elements, which did not perform any measuring themselves but were used to set the location of the device's measuring slide, were for a subsidiary purpose. Similarly, the IMS 1700's telescope, which is used to position the device's helium-neon laser, is used for a "subsidiary purpose." Thus, the telescope cannot be used as a basis for the classification of the IMS 1700 under subheading 9031.40.90, HTSUS.

As for the remaining optical components of the IMS 1700, counsel argues that a laser is not an optical instrument, and - 4 -
thus cannot be used as a basis for determining that a device incorporating a laser is an "optical" one. Counsel points out that laser-based machine tools are classified under heading 8456, HTSUS, rather than under a chapter 90 heading. However, EN 90.13, pg. 1479, states that machines incorporating lasers, such as the laser machine tools of heading 8456, HTSUS, as well as, the laser soldering, brazing or welding machines of heading 8515, HTSUS, cannot be classified under heading 9013, HTSUS (which provides in part for "lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter . . ."). As laser-based machine tools and laser soldering, brazing and welding machines are not measuring or checking instruments, the only provision in chapter 90 where they could have been classified is heading 9013, HTSUS. As they are precluded from heading 9013, HTSUS, these machines cannot be classified in chapter 90. Moreover, it is clear that a laser, which incorporates mirrors that are used to increase the intensity of the beam as it oscillates back and forth between them, is an appliance that incorporates one or more optical elements which are not "solely for viewing a scale or for some other subsidiary purpose." See Additional U.S. Note 3 to chapter 90, HTSUS.

We agree with counsel that a laser, by itself, does not necessarily lead to the conclusion that a device incorporating that laser is classifiable as an "optical" instrument. However, in the instant case, the IMS 1700's laser is used in combination with other optical components. The IMS 1700's measuring head, which measures slope distance and direction to the remote object, "contains the electrooptical components of the system: the laser light source, transmit/receive optics and electronics, telescope and the angle sensing discs [emphasis added]."

The transmitter optics consist of four prisms and are used to bend light emitted from the laser, which then goes through the telescope to the object being measured. The receiver optics consist of two prisms and a filter. The angle sensing discs consist of a glass disc and two prisms.

While counsel states that the newer generation of Geotronics' laser measuring machines use an electronic system in place of the angle sensing discs, those machines are not before us. The IMS 1700's angle sensing discs create a reference point for the telescope. Horizontal and vertical angles are measured by sensing the position of the two pulse discs. To sense the angle, coded pulse tracks on the disc are illuminated by a light- emitting diode, and the images of the pulse tracks are projected into an optical system on the opposite side of the disc. The discs, which are necessary for the IMS 1700 to perform measurements at vertical and horizontal angles, are not used simply "for viewing a scale or for some other subsidiary purpose." See Additional U.S. Note 3 to chapter 90, HTSUS. - 5 -

Customs has recently considered the classification of another laser-based inspection system. In HQ 954117, dated August 22, 1994, Customs determined that the Sira Image Automation laser-based inspection system, which was designed to identify defects in flat homogenous products, was classifiable as an optical checking instrument under subheading 9031.40.90 (then 9031.40.00), HTSUS. The system incorporated lenses which focused its laser beam onto the surface of the products being examined, mirrors which controlled the direction of the beam and a mirrored, rotating polygon, which caused the beam to be swept across the product. The lenses, mirrors and mirrored polygon were necessary to bend, refract, etc., the laser beam in order to focus or amplify the light onto the product. The optical components of the system were not, therefore, for some subsidiary purpose, such as, viewing a scale.

In HQ 954117, the Image Automation system's laser, in combination with the optics located outside of the laser--the lenses, mirrors and mirrored polygon--led to the determination that the system was on "optical" one. Similarly, the IMS 1700's laser, in combination with the transmitter optics, receiver optics and angle sensing pulse discs, lead us to the determination that the system is an "optical" system. The IMS 1700 is therefore classifiable under subheading 9031.40.90, HTSUS.

HOLDING:

The Geotronics Industrial Measuring System (IMS 1700) is classifiable under subheading 9031.40.90, HTSUS, which provides for other optical measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter. The corresponding rate of duty for articles of this subheading is 8.7% ad valorem.

This decision should be mailed by your office to the internal advice requestor no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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